Our Vancouver and Surrey parental child abduction lawyers at the MacLean Family Law Group are aware of the preventative actions required when you are of the belief that your child may be in danger of being abducted by your former spouse. At the end of this article we provide valuable free tips concerning preventing child kidnapping by a parent to be followed to help minimize the risk of parental child abductions.
Contact us to find out your rights if you feel your child is at risk and learn how to use and follow the proper court procedure.
The Royal Canadian Mounted Police estimate that an average of 400 parental child abductions take place in Canada every year. What are the actions of BC family law courts when a parent abducts their child in a desperate attempt to prevent custody or access to the other parent?
When Family and Criminal Law Converge
The elements of parental child abduction are defined in the Canadian criminal Code by two charges one charge relates to abduction in the presence of a child custody order and one charge relates to abduction when there is no child custody order. Sections 282 and 283 of the Criminal Code of Canada defines parental child abduction and the punishment administered by the courts:
Sections 282 and 283 of the Criminal Code of Canada
Section 282
(1) [Abduction in contravention of custody order]
Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years, or
(b) an offence punishable on summary conviction.
(2) [Where no belief in validity of custody order]
Where a count charges an offence under subsection (1) and the offence is not proven only because the accused did not believe that there was a valid custody order but the evidence does prove an offence under section 283, the accused may be convicted of an offence under section 283.
Section 283
(1) [Abduction]
Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that
person, is guilty of(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years, or
(b) an offence punishable on summary conviction.
(2) [Consent required]
No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.
Parental Child Abduction Prosecution
The Crown must prove beyond reasonable doubt a number of fundamental factors in order to successfully prosecute a parent for abduction of their child:
a) the accused parent is a parent, guardian or person having the lawful care or charge of the child who was taken (a “Caregiver”)
b) the accused took the child with the intent to deprive the other parent, guardian or caregiver of possession of the child
c) the child was less than 14 years old when s(he) was taken
d) the child was taken by the accused
e) the accused’s abduction of the child was in a prosecution under Section 282 or 283 of the Criminal Code of Canada
According to Sections 284 and 285 of the Criminal Code, an accused may be found not guilty of child abduction if the following factors are proven in a court of law:
284. Defence
No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person.
285. Defence
No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.
The Importance of a Child Custody Order
A detailed and well written child custody order is an important preventive tool against parental abduction or a strong force in convicting a parent who has abducted their child.
In the case R. V. Gebhardt, 2000 BCPC 146, a father was charged with abducting his five year-old daughter contrary to Section 283 of the Criminal Code.
Mr. and Ms. Gebhardt were married in 1995 and had two children. The mother was the primary caregiver to the children while the father was the sole breadwinner in the marriage. Ms. Gebhardt described her husband as “abusive, controlling and bad-tempered” and she did not approve of the way Mr. Gebhardt disciplined their eldest child.
His Honour Judge Alexander states:
8. Without warning, on May 17th, 1999, Ms. Gebhardt left the matrimonial home in Manitoba and came to British Columbia with the couple’s two children. She left a note for her husband, saying that she had gone to visit with a friend in a nearby town. The note was false. She left no forwarding address. She testified candidly that it was her intention to sever all contact between herself, the accused and the children.
9. The accused suspected his wife may have come to Vancouver. He attempted to find her through friends, but said he was not successful. He came to Vancouver twice to locate her, the first time, within days of his wife’s flight from Manitoba. He was forced to return to Dauphin to deal with family apartment and other property issues. He reported the matter to the police in Manitoba. He told them he did not wish to pursue any criminal charges for his wife’s actions in taking the children. He returned to Vancouver a short time later.
The accused testified that on June 11th, 1999, he saw his wife and children, by coincidence, in a parking lot in Burnaby. He confronted his wife who refused to speak to him. She then left with the children in her vehicle. Mr. Gebhardt pursued his wife in his own vehicle until she finally pulled into another parking lot. The two spouses were speaking to one another when Mr. Gebhardt grabbed the eldest child and a placed her in his vehicle. He then drove away. The Honourable Mr. Justice Alexander concludes at para. 16:16. The accused and the child were located about four hours later in Hope, British Columbia. The accused testified that he was just driving, with no particular destination in mind. He testified that he was distraught, in tears, and was acting spontaneously. He said he feared he would never see his daughter again. He says he did not have any intention to deprive Ms. Gebhardt of the possession of the child. He says he was emotionally upset, as he had not seen his daughter for two months. He says his only intention was to be reunited with Erika and to spend some time with his child.
Counsel for Mr. Gebhardt argued that he verily believed that he had an equal right to the care and control of his child; therefore, his actions were not criminal. The defence argued that this was especially due to Ms. Gebhardt’s actions of bringing the children to B.C. without notifying the father.Mr. Gebhardt was found guilty of parental abduction contrary to Section 283 of the Criminal Code. In his reasoning, the Honourable Mr. Justice Alexander focused on the purpose of Section 283 of the Criminal Code:
29. The prosecution submits that the purpose of Section 283 is the prevention of taking children by force by those who believe they have the right to do so. It submits that the manner in which the other person came into possession of the child is not relevant, even if the child is wrongfully taken. The prosecution submits that this section is designed to prevent self-help remedies.
His Honourable Judge Alexander emphasized the fact that no custody order was in place and neither parent had used appropriate legal measures to obtain custody of the children:36. In the instant case, there is no custody order or agreement between the parties. Each parent, in the absence of such an order or legislative provision to the contrary, is equally entitled to custody. This was the finding of the court in Regina v. Dawson, and is also consistent with the applicable statutory provisions in the Family Relations Act and the Family Maintenance Act of Manitoba.
42. Self-help remedies in the context of child custody are not to be condoned by the courts and may result in criminal sanctions. This is the intent of Parliament by virtue of its enactment of Section 283. The policy reasons behind the foregoing are obvious. Though I have some sympathy for any parent who has not been able to see his or her child due to the actions of the other parent, the object of Section 283 has been clearly interpreted in the cases cited herein.
Police Enforcement and Parental Abduction
The Royal Canadian Mounted Police have stated that police agencies must make a court application to assist in tracing a person who is suspected of parental abduction. The Department of Justice Canada has created a Tracing Information Service which can assist in searching various federal government information banks for an address of the abducting parent.
If a parent or lawyer for a parent requests RCMP assistance in enforcing a civil court order to apprehend a child from the other parent, the RCMP require a certified true copy of the order in their possession. The RCMP must have permission from the Criminal Operations Officer or delegate to execute the order before any action can be taken.
The RCMP also state how the use of Amber Alert has also become an effective tool used by police agencies in finding abducted children.
The National Missing Children Services is the National Coordinator for the Amber Alert Program in Canada.
Amber Alert is a voluntary cooperative program used between police services and local broadcasters. It is used to provide an organized and prompt response to child abductions.
Preventative Steps for Parental Abduction
If you feel your former spouse may try to abduct your child, you should:
a) apply for a court order that contains restrictions on travel with the child. Each parent should have to express written permission for either to travel with the child (outside of the town in which they reside or at least the Province of BC)
b) if a custody order already exists, you can apply to vary the order so that these details may be added and ensure it is filed as a Protection registry Order
c) the child’s passport and any travel documents should be provided either to the custodial parent or to the courts if both parents share custody
d) notify teachers, child care providers, or any person directly involved with your child of your custody order. Make sure that they understand the restrictions in place with regards to your child
e) keep a record of detailed information of your child
f) make sure you have a current address and possible cell phone number of your former spouse as this can assist the police if an abduction was to occur
Remember that parental abduction is a criminal offence and should never be used as a means to solve a custody dispute. Legal measures should be taken to properly deal with custody issues between parents. No child should be held captive by a parent who sees it as his or her right to keep a child from a parent without taking proper legal action in a court of law.
If you need help with a parental abduction concern, contact MacLean Family Law Group at 1 877 602 9900 to book a consultation.
By Romney Burkett Legal Assistant MLG
